Free Speech Challenge of Advertising Regulation May Help Businesses

As a business owner, you may not give much thought to first amendment free speech issues. But if you advertise your product, what you say to the public can be regulated by the government. The balancing act between free speech and regulation can be very delicate.

Commercial Speech and the Constitution

Commercial speech has historically been treated differently than an individual’s rights to free speech. With commercial speech, such as advertising, there is no free speech right to mislead or lie to the public, which is why false advertising laws don’t violate the Constitution. Assuming advertising doesn’t do those things, truthful advertising speech can still be regulated, if it furthers a substantial government purchase.

A recent case challenged a Florida advertising law on free speech grounds. A milk company was selling skim milk, but not infusing the milk with vitamins that are naturally lost when milk is made into skim milk. It did so because it believed that to be truly natural, it should not alter the skim milk in any way.

Florida law requires that to be advertised as “skim milk,” those nutrients need to be included or put back into the milk. Thus, the company was being prohibited from selling its milk, or else forced to use terms like “imitation milk,” or other words that the company felt sounded like the milk was inauthentic or not organic.

Regulation Challenged in Court

The company challenged the law in court as a violation of free speech. The state first argued that there was no speech being regulated at all, only the conduct of the milk company, but the court disagreed, as the dispute was over the labeling of the milk as skim vs. artificial—clearly a question of speech.

The state then argued that the use of “skim milk” was misleading, under the state’s definition that skim milk needed to have the extra vitamins put back in. The court disagreed with that as well, noting that a state’s definition of a term isn’t conclusive to see if speech is misleading or deceptive to the public. The court noted that the company was advertising exactly what it was selling—skim milk.

The court then determined that the state was violating the Constitution, because it could protect the public by using less restrictive means. It could, for example, require a disclosure that no vitamins were added into the milk, as a way of accomplishing the goal of informing the public. Simply restricting the company’s use of “skim milk” went farther than what was needed to accomplish these goals.

The case should be an eye opener to businesses that regulation that is overbearing can be challenged. Businesses have rights, and do not always have to blindly accept the laws and regulations that are imposed on them. Legal avenues may be available to businesses that believe that regulation is overreaching or violates free speech.

Make sure you understand the regulations that affect your business. Contact Tampa business attorney David Toback to discuss reviewing business agreements and documents and your marketing materials.

Resources:

law2.umkc.edu/faculty/projects/ftrials/conlaw/centhud.html

scholar.google.com/scholar_case?case=16534059398691852543&q=Ocheesee+Creamery+LLC+v.+Putnam&hl=en&as_sdt=40006&as_vis=1